[Federal Register Volume 63, Number 134 (Tuesday, July 14, 1998)]
[Proposed Rules]
[Pages 37797-37808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-18732]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-6124-3]


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Proposed Exclusion

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comment.

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SUMMARY: The EPA is proposing to grant a petition submitted by 
McDonnell Douglas Corporation (McDonnell Douglas), a wholly owned 
subsidiary of The Boeing Corporation, to exclude (or delist) certain 
solid wastes generated by its U.S. Air Force Plant Number 3 (Air Force 
Plant No. 3) Tulsa, Oklahoma, facility from the lists of hazardous 
wastes contained in 40 CFR 261.24 and 261.31 (hereinafter all sectional 
references are to 40 CFR unless otherwise indicated). This petition was 
submitted under Sec. 260.20(a), which allows any person to petition the 
Administrator to modify or revoke any provision of parts 260 through 
266, 268 and 273, and under Sec. 260.22(a), which specifically provides 
generators the opportunity to petition the Administrator to exclude a 
waste on a ``generator specific'' basis from the hazardous waste lists. 
This proposed decision is based on an evaluation of waste-specific 
information provided by the petitioner. If this proposed decision is 
finalized, the petitioned waste will be excluded from the requirements 
of hazardous waste regulations under the Resource Conservation and 
Recovery Act (RCRA).

DATES: The EPA is requesting public comments on this proposed decision. 
Comments will be accepted until August 28, 1998. Comments postmarked 
after the close of the comment period will be stamped ``late,'' and 
will not be considered in formulating a final decision.
    Any person may request a hearing on this proposed decision by 
filing a request with Acting Director, Robert Hannesschlager, 
Multimedia Planning and Permitting Division, whose address appears 
below, by July 29, 1998. The request must contain the information 
prescribed in Sec. 260.20(d).

ADDRESSES: Send three copies of your comments. Two copies should be 
sent to the William Gallagher, Delisting Section, Multimedia Planning 
and Permitting Division (6PD-O), Environmental Protection Agency, 1445 
Ross Avenue, Dallas, Texas 75202. A third copy should be sent to the 
Oklahoma Department of Environmental Quality, 707 North Robinson 
Street, Oklahoma City, Oklahoma 73102. Identify your comments at the 
top with this regulatory docket number: ``F-98-OKDEL-AIRFORCEPLANT3.''
    Requests for a hearing should be addressed to the Acting Director, 
Robert Hannesschlager, Multimedia Planning and Permitting Division 
(6PD), Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 
75202.
    The RCRA regulatory docket for this proposed rule is located at the 
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202 and is available for viewing

[[Page 37798]]

in the Freedom of Information Act Reviewing Room on the 7th Floor from 
9:00 a.m. to 4:00 p.m., Monday through Friday, excluding Federal 
holidays. Call (214) 665-6444 for appointments. The public may copy 
material from any regulatory docket at no cost for the first 100 pages, 
and at fifteen cents per page for additional copies.

FOR FURTHER INFORMATION CONTACT: For technical information concerning 
this notice, contact David Vogler, Multimedia Planning and Permitting 
Division, Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Dallas, TX 75202, (214)665-7428.

SUPPLEMENTARY INFORMATION:

I. Background

A. Authority

    On January 16, 1981, as part of its final and interim final 
regulations implementing section 3001 of RCRA, EPA published an amended 
list of hazardous wastes from non-specific and specific sources. This 
list has been amended several times, and is published in Secs. 261.31 
and 261.32. These wastes are listed as hazardous because they typically 
and frequently exhibit one or more of the characteristics of hazardous 
wastes identified in subpart C of part 261 (i.e., ignitability, 
corrosivity, reactivity, and toxicity) or meet the criteria for listing 
contained in Sec. 261.11(a)(2) or (a)(3).
    Individual waste streams may vary however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
that is described in these regulations generally is hazardous, a 
specific waste from an individual facility meeting the listing 
description may not be. For this reason, Secs. 260.20 and 260.22 
provide an exclusion procedure, allowing persons to demonstrate that a 
specific waste from a particular generating facility should not be 
regulated as a hazardous waste.
    To have their wastes excluded, petitioners must show that wastes 
generated at their facilities do not meet any of the criteria for which 
the wastes were listed. See Sec. 260.22(a) and the background documents 
for the listed wastes. In addition, the Hazardous and Solid Waste 
Amendments (HSWA) of 1984 require the EPA to consider any factors 
(including additional constituents) other than those for which the 
waste was listed, if there is a reasonable basis to believe that such 
additional factors could cause the waste to be hazardous. Accordingly, 
a petitioner also must demonstrate that the waste does not exhibit any 
of the hazardous waste characteristics (i.e., ignitability, reactivity, 
corrosivity, and toxicity), and must present sufficient information for 
the EPA to determine whether the waste contains any other toxicants at 
hazardous levels. See Sec. 260.22(a), 42 U.S.C. 6921(f), and the 
background documents for the listed wastes. Although wastes which are 
``delisted'' (i.e., excluded) have been evaluated to determine whether 
or not they exhibit any of the characteristics of hazardous waste, 
generators remain obligated under RCRA to determine whether or not 
their waste remains nonhazardous based on the hazardous waste 
characteristics.
    In addition, mixtures containing listed hazardous wastes are also 
considered hazardous wastes as are wastes derived from the treatment, 
storage, or disposal of listed hazardous waste. See 
Sec. 261.3(a)(2)(iv) and (c)(2)(i), referred to as the ``mixture'' and 
``derived-from'' rules, respectively. Such wastes are also eligible for 
exclusion and remain hazardous wastes until excluded. On December 6, 
1991, the U.S. Court of Appeals for the District of Columbia vacated 
the ``mixture/derived from'' rules and remanded them to the EPA on 
procedural grounds. See Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 
1991). On March 3, 1992, EPA reinstated the mixture and derived-from 
rules, and solicited comments on other ways to regulate waste mixtures 
and residues (57 FR 7628). These rules became final on October 30, 1992 
(57 FR 49278). These references should be consulted for more 
information regarding mixtures and derived from wastes.

B. Approach Used to Evaluate This Petition

    McDonnell Douglas' Air Force Plant No. 3 petition requests a one-
time delisting for listed hazardous wastes. In making the initial 
delisting determination, the EPA evaluated the petitioned wastes 
against the listing criteria and factors cited in Secs. 261.11(a)(1), 
261.11(a)(2) and (a)(3). Based on this review, the EPA agreed with the 
petitioner that the waste is nonhazardous with respect to the original 
listing criteria. (If the EPA had found, based on this review, that the 
wastes remained hazardous based on the factors for which the wastes 
were originally listed, EPA would have proposed to deny the petition.) 
The EPA then evaluated the wastes with respect to other factors or 
criteria to assess whether there is a reasonable basis to believe that 
such additional factors could cause the wastes to be hazardous. The EPA 
considered whether the wastes are acutely toxic, the toxicity of the 
constituents, the concentration of the constituents in the wastes, 
their tendency to migrate and to bioaccumulate, their persistence in 
the environment once released from the wastes, plausible and specific 
types of management of the petitioned wastes, the quantities of wastes 
generated, and waste variability.
    For this delisting determination, the EPA used such information 
gathered to identify plausible exposure routes (i.e., ground water, 
surface water and air) for hazardous constituents present in the 
petitioned wastes. The EPA determined that disposal in a Subtitle D 
(solid, nonhazardous waste) landfill is the most reasonable, worst-case 
disposal scenario for McDonnell Douglas' petitioned wastes, and that 
the major exposure route of concern would be ingestion of contaminated 
ground water. Therefore, the EPA used a particular fate and transport 
model, the EPA Composite Model for Landfills (EPACML), to predict the 
maximum allowable concentrations of hazardous constituents that may be 
released from the petitioned wastes after disposal and to determine the 
potential impact of the disposal of McDonnell Douglas' petitioned 
wastes on human health and the environment. Specifically, the EPA used 
the maximum estimated waste volumes and the maximum reported extract 
concentrations as inputs to estimate the constituent concentrations in 
the ground water at a hypothetical receptor well downgradient from the 
disposal site. The calculated receptor well concentrations (referred to 
as compliance-point concentrations) were then compared directly to the 
current Maximum Contaminant Levels (MCLs) promulgated under the Safe 
Drinking Water Act (SWDA) or health-based levels derived from verified 
Reference Doses (RfDs). The values used for lead and copper are action 
levels for treatment of a water supply in lieu of an MCL (40 CFR 
141.80).
    The EPA believes that this fate and transport model represents a 
reasonable worst-case scenario for disposal of the petitioned wastes in 
a landfill, and that a reasonable worst-case scenario is appropriate 
when evaluating whether a waste should be relieved of the protective 
management constraints of RCRA Subtitle C. The use of a reasonable 
worst-case scenario results in conservative values for the compliance-
point concentrations and gives a high degree of confidence that the 
waste, once removed from hazardous waste regulation, will not pose a 
threat to human health or the environment. In most cases, because a 
delisted waste is no longer subject to hazardous waste control (unless 
conditionally delisted),

[[Page 37799]]

the EPA is generally unable to predict, and does not presently control, 
how a waste will be managed after delisting. Therefore, EPA normally 
believes that it is inappropriate to consider extensive site-specific 
factors when applying the fate and transport model. If however, 
conditions contained in a delisting indicate that it is necessary to 
consider site specific factors or otherwise indicate that the model is 
inappropriate, EPA may consider these factors in applying the model. 
For modeling purposes it is assumed that a Subtitle D landfill will be 
unlined.
    The EPA also considers the applicability of ground water monitoring 
data during the evaluation of delisting petitions. In this case, the 
EPA determined that it would be appropriate to review ground water 
monitoring data since the petitioned wastes generated at McDonnell 
Douglas' facility were disposed of as part of an onsite surface 
impoundment which was partitioned by dikes into three lagoons which 
were closed as a single RCRA landfill. The analytical results from a 
combination of up to eighteen monitoring wells dating from 1981 until 
1997 was reviewed. The data indicated that there has been no 
significant impact to the ground water from the closed landfill. The 
evaluation of this information is another indication that the waste has 
been stabilized and does not leach hazardous constituents in 
concentrations that are significant to human health and the 
environment.
    From the evaluation of McDonnell Douglas' delisting petition, a 
list of constituents was developed for the verification testing 
conditions. Proposed maximum allowable leachable concentrations for 
these constituents were derived by back-calculating from the delisting 
health-based levels through the proposed fate and transport model for a 
landfill management scenario. These concentrations (i.e., delisting 
levels) are part of the proposed verification testing conditions of the 
exclusion.
    McDonnell Douglas' exclusion (if granted) would be contingent upon 
the facility conducting stabilization activities on approximately 5,000 
cubic yards of the 85,000 cubic yards of petitioned waste present in 
the three lagoons jointly closed as a RCRA landfill. Subsequent 
verification testing of representative samples of the newly stabilized 
waste would also be required. Analytical data from cores taken from the 
landfill indicate that about 5,000 cubic yards of waste was not 
stabilized during the closure process and will need to be stabilized 
before being transported offsite for disposal in a Subtitle D landfill. 
These wastes are presently located in the bottom one to three feet of 
lower portion of the northwest lagoon which is a portion of the surface 
impoundments closed as a landfill at the Tulsa Air Force Plant No. 3 
Facility. The unstabilized wastes are easily identified by color, 
texture, and general physical appearance. This testing would be 
necessary to verify that the stabilization system is operating as 
demonstrated in the petition submitted on November 7, 1997. 
Specifically, the verification testing requirements of the conditional 
exclusion (if granted), would be implemented to demonstrate that the 
stabilization process will generate nonhazardous wastes (i.e., wastes 
that meet the EPA's verification testing conditions).
    Analytical data submitted from cores of the petitioned wastes 
located in the upper portion of the northwest lagoon, the northeast 
lagoon, and the south lagoon of the landfill indicated that the waste 
in those areas was previously stabilized and therefore would not 
require additional verification testing. The EPA's proposed decision to 
delist wastes from the Air Force Plant No. 3 facility is based on the 
information submitted in support of today's rule, i.e., description of 
the historical wastewater treatment system and analytical data from the 
Tulsa facility's closed landfill.
    Finally, the HSWA specifically require the EPA to provide notice 
and an opportunity for comment before granting or denying a final 
exclusion. Thus, a final decision will not be made until all timely 
public comments (including those at public hearings, if any) on today's 
proposal are addressed.

II. Disposition of Delisting Petition

    Air Force Plant No. 3, McDonnell Douglas Corporation, a wholly 
owned subsidiary of The Boeing Corporation, Tulsa, Oklahoma 74115

A. Petition for Exclusion

    McDonnell Douglas petitioned the EPA for a one-time exclusion for 
85,000 cubic yards of stabilized and solidified waste located in three 
surface impoundments that were closed as a single RCRA landfill unit in 
1989 at the U. S. Air Force Plant No. 3, located in Tulsa, Oklahoma. 
Approximately 5,000 cubic yards of the 85,000 cubic yards of petitioned 
wastes were not previously stabilized and would be required to undergo 
stabilization and verification testing. The petitioned wastes were 
generated as a part of the facility's wastewater treatment process 
which operated from 1953 to 1989. The resulting wastes are presently 
listed as EPA Hazardous Waste No. F019. The petitioned wastes are 
believed to also have very small amounts of wastes presently classified 
as F002, F003, and F005. The listed constituents of concern for these 
waste codes are listed in Table 1.

   Table 1.--Hazardous Waste Codes Associated With Wastewater Streams   
------------------------------------------------------------------------
       Waste code               Basis for characteristics/listing       
------------------------------------------------------------------------
F019...................  Hexavalent Chromium. Cyanide (complexed).      
F002...................  Tetrachloroethylene, trichloroethylene,        
                          methylene chloride, 1,1,1-trichloroethane,    
                          1,1,2-trichloroethane, chlorobenzene, 1,1,2-  
                          trichloro-1,2,2-trifluoroethane, ortho-       
                          dichlorobenzene, trichlorofluoromethane.      
F003...................  Xylene, acetone, ethyl acetate, ethyl benzene, 
                          ethyl ether, methyl isobutyl ketone, n-butyl  
                          alcohol, cyclohexanone, methanol.             
F005...................  Toluene, methyl ethyl ketone, carbon disulfide,
                          isobutanol, pyridine, benzene, 2-             
                          ethoxyethanol, 2-nitropropane.                
------------------------------------------------------------------------

    McDonnell Douglas (Air Force Plant No. 3) petitioned the EPA to 
exclude the stabilized treatment wastes because it does not believe 
that the petitioned wastes meet the criteria for which they were 
listed. McDonnell Douglas further believes that the wastes are not 
hazardous for any other reason (i.e., there are no additional 
constituents or factors that could cause the wastes to be hazardous). 
Review of this petition included consideration of the original listing 
criteria, as well as the additional factors required by the HSWA. See 
section 222 of HSWA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(2)-(4). 
Today's proposal to grant this petition for delisting is the result of 
the EPA's evaluation of Air Force Plant No.3's petition as submitted by 
McDonnell Douglas Corporation.

B. Background

    On November 7, 1997, McDonnell Douglas petitioned the EPA to grant 
a one-time exclusion from the lists of hazardous waste contained in 
Secs. 261.31

[[Page 37800]]

and 261.32, a one-time volume of stabilized and solidified wastewater 
treatment plant sludges which were disposed of in the facility's 
wastewater surface impoundments which have since been jointly closed as 
a RCRA landfill unit in accordance with a closure and post-closure plan 
approved by the Oklahoma Department of Environmental Quality (ODEQ). 
The wastewater treatment sludges were stabilized with fly ash and then 
capped with a RCRA cap. Specifically, in its petition, McDonnell 
Douglas requested that the EPA grant an exclusion for 85,000 cubic 
yards of stabilized wastewater treatment sludge. The facility 
characterized the petitioned waste as stabilized with the exception of 
about 5,000 cubic yards which will require stabilization and 
verification testing.
    In support of its petition, McDonnell Douglas submitted: (1) 
Descriptions of its wastewater treatment processes and the activities 
associated with petitioned wastes; (2) results of the total constituent 
list for 40 CFR part 264, Appendix IX volatiles, semivolatiles, metals, 
pesticides, herbicides, polychlorinated biphenyls (PCBs), furans, and 
dioxins; (3) results of the constituent list for Appendix IX on 
Toxicity Characteristic Leaching Procedure (TCLP) extract for 
identified constituents; (4) results for total sulfide; (5) results for 
total cyanide; (6) results for pH; (7) results of the Multiple 
Extraction Procedure (MEP) for acidic, neutral, and basic extractions; 
(8) results of ground water monitoring; and (9) results of surface 
impoundment waste analysis for constituents of concern.
    Air Force Plant No. 3 is an inactive plant that was used for 
maintenance operations on military and commercial aircraft, as well as 
for manufacturing aerospace and aircraft products. The bulk of the 
petitioned waste was generated by treatment of wastewater generated by 
electroplating and metal finishing operations. Analysis indicates that 
the plant may have treated minor amounts of fuels. Wastes were 
collected in two separate sewer systems: acid-chrome and alkali-chrome. 
Wastes were then directed to the onsite industrial wastewater treatment 
plant. Cyanide was oxidized using chlorine. The chromic wastewater was 
treated by reduction with sulfur dioxide. The pH was controlled using 
caustic soda, sulfuric acid, and carbon dioxide. Ferrous sulfate was 
fed into the clarifier to flocculate solids. The resulting wastewater 
treatment sludges accumulated in sludge sumps and then were pumped 
through a pipeline into the system of surface impoundments. In 1989, 
most of the sludges in the impoundments were stabilized and solidified 
using fly ash and some clay. Later borings indicated that some of the 
waste in the lower portion in the northwest section of the impoundments 
was not completely stabilized. McDonnell Douglas wants to similarly 
stabilize this waste and delist all waste in all of the impoundments 
closed as a single RCRA landfill. The waste will then be transported 
offsite and disposed of in a Subtitle D landfill. It is planned to 
clean close the Air Force Plant No. 3 landfill under ODEQ authority.
    McDonnell Douglas developed a list of constituents of concern from 
comparing a list of all raw materials used in the plant that could 
potentially appear in the petitioned waste with those found in 40 CFR 
part 264. McDonnell Douglas analyzed two composite samples for the 
total concentrations (i.e., mass of a particular constituent per mass 
of waste) of the volatiles and semivolatiles, metals, herbicides, 
pesticides, PCBs, and furans from Appendix IX. These two samples (NW-37 
and SE-37) were analyzed for the comprehensive list in order to confirm 
that there were no other constituents of concern in the surface 
impoundments.
    Twenty-one (21) composite samples were taken from the closed 
landfill unit. Five of these samples were from the northwest lagoon of 
the unit where the sludges that are not completely stabilized are 
located. All samples were analyzed for constituents of concern and were 
also analyzed to determine whether the waste exhibited ignitable, 
corrosive, or reactive properties as defined under 40 CFR 261.21, 
261.22, and 261.23, including analysis for total constituent 
concentrations of cyanide and sulfide. These samples were also analyzed 
for TCLP concentrations (i.e., mass of a particular constituent per 
unit volume of extract) of all the volatiles, semivolatiles, and metals 
identified as constituents of concern. The MEP was performed on four 
samples to test the ability to stabilize eighteen (18) different metals 
at three different pH's. The procedure was run at three different pH 
values (2.88, 7, and 13 Standard Units) to determine if a change in pH 
might significantly alter the leachate concentrations. Historical 
analytical results from ground water monitoring wells was also 
submitted for review.

C. EPA Analysis

    McDonnell Douglas used SW-846 Methods 8260, 8270, 6010, 7196A, 
7471, to quantify the total constituent concentrations of volatiles and 
semivolatiles (excluding PCBs, pesticides, herbicides) metals, and 
dioxins/furans. McDonnell Douglas used SW-846 Methods 9045, 9030A, 9012 
to quantify pH, total sulfide, and total cyanide. McDonnell Douglas 
used SW-846 Methods 8260, 8270, 6010, 7196A, 7470 to quantify the 
constituents from the TCLP extract. The petitioned waste does not meet 
the definitions for reactivity and corrosivity as defined by 
Secs. 261.22 and 261.23. Tables 2A and 2B present the maximum total 
constituent and leachate concentrations for the stabilized waste. 
Tables 3A and 3B present the maximum total constituent and leachate 
concentrations for the unstabilized sludge waste samples from the 
bottom of the northwest lagoon of the unit.
    McDonnell Douglas calculated, based on a one-time removal and 
addition of stabilization agents, the maximum petitioned waste to be 
excluded will be 85,000 cubic yards of stabilized waste.
    The EPA reviews a petitioner's estimates and, on occasion, has 
requested a petitioner to reevaluate the estimated waste volume. The 
EPA accepted McDonnell Douglas' certified estimates. The EPA does not 
generally verify submitted test data before proposing delisting 
decisions. The sworn affidavit submitted with this petition binds the 
petitioner to present truthful and accurate results. The EPA, however, 
has maintained a spot-check sampling and analysis program to verify the 
representative nature of the data for some percentage of the submitted 
petitions. A spot-check visit to a selected facility may be initiated 
before finalizing a delisting petition or after granting an exclusion.

Table 2A.--Maximum Organic Total Constituent and Leachate Concentrations
                                   \1\                                  
                [Stabilized Wastewater Treatment Sludge]                
------------------------------------------------------------------------
                                                   Total                
                                                constituent    Leachate 
                 Constituents                  analyses (mg/   analyses 
                                                    kg)         (mg/l)  
------------------------------------------------------------------------
Acetone......................................         0.53            NA
Benzene......................................         0.003         <0.1
Ethylbenzene.................................         0.004           NA
Toluene......................................         0.035           NA
Xylenes......................................         0.019           NA
Phenol.......................................         0.39            NA
------------------------------------------------------------------------
< Denotes that the constituent was not detected at the detection limit  
  specified in the table.                                               
\1\ These levels represent the highest concentration of each constituent
  found in any one sample. These levels do not necessarily represent the
  specific levels found in one sample.                                  
NA Denotes that the constituent was not analyzed.                       


[[Page 37801]]


       Table 2B.--Maximum Inorganic Total Constituent and Leachate      
                           Concentrations \1\                           
                [Stabilized Wastewater Treatment Sludge]                
------------------------------------------------------------------------
                                                   Total                
                                                constituent    Leachate 
                 Constituents                  analyses (mg/   analyses 
                                                    kg)         (mg/l)  
------------------------------------------------------------------------
Antimony.....................................         0.42        0.0145
Arsenic......................................        31.7          0.057
Barium.......................................      2860              3.4
Beryllium....................................         2.4         0.0195
Cadmium......................................        39.8          0.323
Chromium (Total).............................      9710             9.79
Chromium (Hexavalent)........................         0.42          0.06
Cobalt.......................................        16.1         0.0673
Copper.......................................       163            0.301
Lead.........................................        89           0.0422
Mercury......................................         0.09       0.00025
Nickel.......................................        64.4           0.28
Selenium.....................................        11.3         0.0691
Silver.......................................         0.4           0.03
Thallium.....................................         0.47         0.005
Tin..........................................        35.9         <0.014
Vanadium.....................................       228            0.141
Zinc.........................................       229            0.519
Sulfide (Total)..............................       <50               NA
Cyanide (Total)..............................         7               NA
pH (Standard Units)..........................         6.19            --
------------------------------------------------------------------------
< Denotes that the constituent was not detected at the detection limit  
  specified in the table.                                               
\1\ These levels represent the highest concentration of each constituent
  found in any one sample. These levels do not necessarily represent the
  specific levels found in one sample.                                  
NA Denotes that the constituent was not analyzed.                       


Table 3A.--Maximum Organic Total Constituent and Leachate Concentrations
              \1\ Unstabilized Wastewater Treatment Sludge              
------------------------------------------------------------------------
                                                               Leachate 
             Constituents                Total Constituent     Analyses 
                                         Analyses (mg/kg)       (mg/l)  
------------------------------------------------------------------------
Acetone..............................            0.15                 NA
Benzene..............................            0.185              <0.1
Ethylbenzene.........................          158                    NA
Toluene..............................         3000                    NA
Xylenes..............................          792                    NA
trans-1,2-Dichloroethene.............            0.212                NA
Tetrachloroethene....................            0.64               <0.1
Trichloroethylene....................         1090                  17.3
m-Cresol.............................           <0.38               0.09
p-Cresol.............................           <0.38              0.09 
------------------------------------------------------------------------
<Denotes that the constituent was not detected at the detection limit   
  specified in the table.                                               
\1\ These levels represent the highest concentration of each constituent
  found in any one sample. These levels do not necessarily represent the
  specific levels found in one sample.                                  
NA Denotes that the constituent was not analyzed.                       

D. EPA Evaluation

    The EPA considered the appropriateness of alternative waste 
management scenarios for McDonnell Douglas' stabilized wastewater 
treatment waste from the closed impoundments. The EPA decided, based on 
the information provided in the petition, that disposal of the 
petitioned waste in a municipal or industrial solid waste landfill is 
the most reasonable, worst-case scenario.

       Table 3B.--Maximum Inorganic Total Constituent and Leachate      
       Concentrations \1\ Unstabilized Wastewater Treatment Sludge      
------------------------------------------------------------------------
                                                             Leachate   
        Constituents          Total Constituent Analyses   Analyses (mg/
                                        (mg/kg)                 l)      
------------------------------------------------------------------------
Antimony....................  5.4.......................         0.0952 
Arsenic.....................  43........................         0.0873 
Barium......................  3060......................         3.58   
Beryllium...................  2.3.......................         0.0093 
Cadmium.....................  52.2......................         0.411  
Chromium (Total)............  3820......................         1.36   
Chromium (Hexavalent).......  <0.25.....................        <0.05   
Cobalt......................  19.4......................         0.0478 
Copper......................  157.......................         0.2    
Lead........................  220.......................         0.0737 
Mercury.....................  0.25......................         0.00015
Nickel......................  40.7......................         0.21   
Selenium....................  5.8.......................         0.028  
Silver......................  1.2.......................        <0.001  
Thallium....................  0.3.......................        <0.005  
Tin.........................  8.4.......................        <0.014  
Vanadium....................  138.......................         0.111  
Zinc........................  535.......................         1.25   

[[Page 37802]]

                                                                        
Sulfide (Total).............  <50.......................        NA      
Cyanide (Total).............  4.........................        NA      
pH (Standard Units).........  06.89-9.43 range..........  ..............
------------------------------------------------------------------------
 <Denotes that the constituent was not detected at the detection limit  
  specified in the table.                                               
\1\ These levels represent the highest concentration of each constituent
  found in any one sample. These levels do not necessarily represent the
  specific levels found in one sample.                                  
 NA Denotes that the constituent was not analyzed.                      

    Under a landfill disposal scenario, the major exposure route of 
concern for any hazardous constituents would be ingestion of 
contaminated ground water. The EPA, therefore, evaluated the petitioned 
wastes using the modified EPACML which predicts the potential for 
ground water contamination from wastes that are landfilled. See 56 FR 
32993 (July 18, 1991), 56 FR 67197 (December 30, 1991) and the RCRA 
public docket for these notices for a detailed description of the 
EPACML model, the disposal assumptions, and the modifications made for 
delisting. This model, which includes both unsaturated and saturated 
zone transport modules, was used to predict reasonable worst-case 
contaminant levels in ground water at a compliance point (i.e., a 
receptor well serving as a drinking-water supply). Specifically, the 
model estimated the dilution/attenuation factor (DAF) resulting from 
subsurface processes such as three-dimensional dispersion and dilution 
from ground water recharge for a specific volume of waste.
    For the evaluation of McDonnell Douglas' petitioned wastes, the EPA 
used the EPACML to evaluate the mobility of the hazardous constituents 
detected in the extract of samples of McDonnell Douglas' Stabilized 
Wastewater Treatment Sludge. Typically, the EPA uses the maximum annual 
waste volume to derive a petition-specific DAF. The DAFs are currently 
calculated assuming an ongoing process generates wastes for 20 years. 
Since the petitioned waste would be a one-time disposal, the waste 
volume is divided by twenty to correctly determine a DAF. Therefore, 
the DAF for the waste volume of 85,000 cubic yards is 56.
    The EPA's evaluation of the stabilized wastewater treatment sludges 
using a DAF of 56, a maximum one-time disposal waste volume estimate of 
85,000 cubic yards, and the maximum reported TCLP concentrations (see 
Tables 2A and 2B), yielded compliance point concentrations (see Tables 
4A and 4B) that are below the current health-based levels except for 
the constituent cadmium which is discussed below.

  Table 4A.--EPACML: Calculated Compliance-Point Organic Concentrations 
                            Stabilized Waste                            
------------------------------------------------------------------------
                                          Compliance Point    Levels of 
          Organic Constituents             Concentrations    Concern \2\
                                             \1\ (mg/l)        (mg/l)   
------------------------------------------------------------------------
Acetone................................          0.00946           4.0  
Benzene................................          0.0000536         0.005
Ethyl Benzene..........................          0.0000714         0.7  
Toluene................................          0.000625          1.0  
Xylenes................................          0.000339         10    
Phenols................................          0.00696          20    
Cyanide................................          0.125             0.2  
------------------------------------------------------------------------
< Denotes that the constituent was not detected at the detection limit  
  specified in the table.                                               
\1\ Using the maximum TCLP leachate level from Table 2A and based on a  
  DAF of 56 calculated using the EPACML for a one-time volume of 85,000 
  cu. yards. Waste concentrations in the northwest lagoon were not      
  included as the bottom waste must be stabilized to be excluded.       
\2\ See Docket Report on Health-Based Levels and Solubilities Used in   
  the Evaluation of Delisting Petitions, December 1994 located in the   
  RCRA public docket for today's notice.                                

    In Table 4A, the maximum reported leachate concentrations of the 
organic constituents detected in the stabilized waste are compared with 
the levels of concern. For this comparison, EPA conservatively used 
available total values and assumed the total concentration would leach. 
The maximum reported leachate concentrations of acetone, benzene, 
ethylbenzene, toluene, and xylene yielded compliance point 
concentrations below the health-based levels used in delisting 
decision-making. The EPA did not evaluate the mobility of the remaining 
organic constituents (e.g., trans-1,2-dichloroethene, 
tetrachloroethylene, trichloroethylene, vinyl chloride, m-cresol, and 
p-cresol) from McDonnell Douglas' stabilized waste because they were 
not detected in the leachate or total chemical analysis using the 
appropriate analytical test methods. The EPA believes that it is 
inappropriate to evaluate nondetectable concentrations of a constituent 
of concern in its delisting modeling efforts if the nondetectable value 
was obtained using the appropriate analytical method. If a constituent 
cannot be detected (when using the appropriate analytical method with 
an adequate detection limit), the EPA, for delisting purposes, assumes 
that the constituent is not present and therefore does not present a 
threat to human health or the environment. In the delisting program EPA 
believes it is inappropriate to evaluate constituents undetected in the 
waste samples. This procedure is consistent with other programs.
    In Table 4B, the maximum reported or calculated leachate 
concentrations of the inorganic constituents detected in the stabilized 
waste are compared with the levels of regulatory concern. The maximum 
reported or calculated

[[Page 37803]]

leachate concentrations of antimony, barium, beryllium, total chromium, 
hexavalent chromium, cobalt, copper, lead, mercury, nickel, selenium, 
silver, thallium, vanadium, and zinc yielded compliance point 
concentrations below the health-based levels used in the delisting 
decision-making. The EPA did not evaluate the mobility of the inorganic 
constituent tin from McDonnell Douglas' stabilized waste because it was 
not detected in the leachate using the appropriate analytical test 
methods (see Table 2B). The maximum reported leachate concentration for 
a single sample of cadmium yielded a calculated compliance point 
concentration (0.00577 mg/l) slightly above the health-based level 
(0.005 mg/l) used in the delisting decision-making process.
    The cadmium value (0.00577 mg/l) represents the calculated leachate 
concentrations of cadmium at a theoretical downgradient ground water 
monitoring well using the EPACML model and a concentration value of 
0.323 mg/l TCLP from one stabilized waste sample. This value was the 
highest concentration identified for the sixteen (16) TCLP analyses or 
the eighty-one (81) MEP analyses completed for cadmium. The 0.323 mg/l 
value was the first extraction for an acidic extraction. The second 
extract from the same sample yielded a value of 0.213 mg/l which would 
in turn produce a calculated compliance point concentration of 0.0038 
mg/l which is below the level of regulatory concern.

 Table 4B.--EPACML: Calculated Inorganic Compliance-Point Concentrations
                            Stabilized Waste                            
------------------------------------------------------------------------
                                         Compliance Point     Levels of 
        Inorganic Constituents          Concentrations \1\   Concern \2\
                                              (mg/l)           (mg/l)   
------------------------------------------------------------------------
Antimony..............................         0.000259            0.006
Arsenic...............................         0.001               0.05 
Barium................................         0.0607              2.0  
Beryllium.............................         0.000348            0.004
Cadmium...............................         0.00577             0.005
Chromium (total)......................         0.175              37    
Chromium, hexavalent..................         0.00107             0.1  
Cobalt................................         0.0012              2.1  
Copper................................         0.0054              1.3  
Lead..................................         0.00075             0.015
Mercury...............................         0.00000446          0.002
Nickel................................        l0.005               0.1  
Selenium..............................         0.00123             0.05 
Silver................................         0.000536            0.2  
Thallium..............................         0.0000893           0.002
Vanadium..............................         0.00252             0.2  
Zinc..................................         0.00927            10.0  
------------------------------------------------------------------------
\1\ Using the maximum TCLP leachate level from Table 2B and based on a  
  DAF of 56 calculated using the EPACML for an one-time volume of 85,000
  cu. yards. Waste concentrations in the northwest lagoon were not      
  included as the bottom waste must be stabilized to be excluded.       
\2\ See Docket Report on Health-Based Levels and Solubilities Used in   
  the Evaluation of Delisting Petitions, December 1994 located in the   
  RCRA public docket for today's notice.                                

    The concentration values for this sample continued a steady decline 
to 0.0022 mg/l for the ninth extraction in the MEP. The steady decline 
in concentration is an indication that the waste will not leach more 
hazardous constituents over time and therefore is stabilized. The next 
highest cadmium TCLP or MEP value for another sample of stabilized 
waste is a concentration of 0.14 mg/l which would yield a compliance 
point concentration of 0.0025 mg/l compared to the level of regulatory 
concern value of 0.005 mg/l. This sample and all other stabilized 
samples (14 samples, 86 analyses) of stabilized waste exhibit lower 
cadmium values. The concentration value for the 95 per cent upper 
confidence level of the mean is calculated at a concentration of 0.0236 
mg/l which yielded a calculated compliance point concentration of 
0.00042 mg/l which is well below the health-based level of 0.005 mg/l 
for cadmium used in the delisting decision-making. Ground water 
monitoring data submitted by the facility also indicated that the waste 
was not leaching as constituents of concern have not been detected by 
the monitoring program in concentrations of regulatory concern. 
Therefore, after further detailed evaluation, EPA does not consider the 
cadmium concentrations to be above health-based levels for purposes of 
delisting.
    The EPA concluded, after reviewing McDonnell Douglas' processes 
that no other hazardous constituents of concern, other than those for 
which tested, are likely to be present or formed as reaction products 
or by-products in McDonnell Douglas' wastes. In addition, on the basis 
of explanations and analytical data provided by McDonnell Douglas, 
pursuant to Sec. 260.22, the EPA concludes that the stabilized 
petitioned wastes do not exhibit any of the characteristics of 
ignitability, corrosivity, or reactivity. See Secs. 261.21, 261.22, and 
261.23, respectively.
    During the evaluation of McDonnell Douglas' petition, the EPA also 
considered the potential impact of the petitioned wastes via non-ground 
water routes (i.e., air emission and surface runoff). With regard to 
airborne dispersion in particular, the EPA believes that exposure to 
airborne contaminants from the petitioned wastes is unlikely; no 
appreciable air releases are likely from the petitioned wastes under 
any likely disposal conditions. The EPA evaluated, however, the 
potential hazards resulting from the unlikely scenario of airborne 
exposure to hazardous constituents released from the petitioned wastes 
in an open landfill. The results of this worst case analysis indicated 
that there is no substantial present or potential hazard to human 
health from airborne exposure to constituents from the stabilized 
wastes. A description of the EPA's assessment of the potential impact 
of McDonnell Douglas' wastes, regarding airborne dispersion of waste 
contaminants, is presented in the RCRA public docket for today's 
proposed rule.
    The EPA also considered the potential impact of the petitioned 
wastes via a

[[Page 37804]]

surface water route. The EPA believes that containment structures at 
municipal solid waste landfills can effectively control surface water 
runoff, as the Subtitle D regulations (See 56 FR 50978, October 9, 
1991) prohibit pollutant discharges into surface waters. Furthermore, 
the concentrations of any hazardous constituents dissolved in the run-
off will tend to be lower than the levels in the TCLP leachate analyses 
reported in today's notice due to the aggressive acidic medium used for 
extraction in the TCLP. The EPA believes that, in general, leachate 
derived from the wastes is unlikely to directly enter a surface water 
body without first traveling through the saturated subsurface where 
dilution and attenuation of hazardous constituents will also occur. 
Leachable concentrations provide a direct measure of solubility of a 
toxic constituent in water and are indicative of the fraction of the 
constituent that may be mobilized in surface water as well as ground 
water.
    Based on the reasons discussed above, EPA believes that the 
contamination of surface water through runoff from the waste disposal 
area is very unlikely. Nevertheless, the EPA evaluated the potential 
impacts on surface water if McDonnell Douglas' waste were released from 
a municipal solid waste landfill through runoff and erosion. See the 
RCRA public docket for today's proposed rule. The estimated levels of 
the hazardous constituents of concern in surface water would be well 
below health-based levels for human health, as well as below the EPA 
Chronic Water Quality Criteria for aquatic organisms (USEPA, OWRS, 
1987). The EPA, therefore, concluded that McDonnell Douglas' stabilized 
waste is not a substantial present or potential hazard to human health 
and the environment via the surface water exposure pathway.

E. Conclusion

    The EPA believes that the descriptions of the McDonnell Douglas' 
chemical hazardous waste process and analytical characterization, in 
conjunction with the proposed verification testing requirements (as 
discussed later in this notice), provide a reasonable basis to grant 
McDonnell Douglas' petition for a standard one-time exclusion of the 
stabilized waste and a conditional one-time exclusion for the 
unstabilized wastes in the bottom of the northwest lagoon of the 
landfill unit. The EPA believes the data submitted in support of the 
petition show McDonnell Douglas' process can render the wastes in the 
northwest quadrant of the surface impoundment which was closed as a 
landfill non-hazardous. The EPA has reviewed the sampling procedures 
used by McDonnell Douglas and has determined they satisfy EPA criteria 
for collecting representative samples of the variations in constituent 
concentrations in the petitioned waste. The data submitted in support 
of the petition show that constituents in McDonnell Douglas' stabilized 
waste are presently below health-based levels used in the delisting 
decision-making. The EPA believes that McDonnell Douglas has 
successfully shown that the stabilized waste is non-hazardous. The EPA, 
therefore, proposes to grant a standard one-time exclusion to the 
McDonnell Douglas Corporation, located in Tulsa, Oklahoma, for the 
stabilized waste in the landfill and a conditional one-time exclusion 
for the unstabilized waste in the bottom of the northwest lagoon of the 
unit as described in its petition. The EPA's decision to exclude this 
waste is based on descriptions the historical wastewater treatment 
activities associated with the petitioned waste and characterization of 
the stabilized and unstabilized waste. If the proposed rule is 
finalized, the petitioned wastes will no longer be subject to 
regulation under parts 262 through 268 and the permitting standards of 
part 270.

F. Verification Testing Conditions

    (1) Delisting Levels: All leachable concentrations for the 
following constituents in the approximately 5,000 cubic yards of 
unstabilized waste in the bottom portion of the northwest lagoon of 
the surface impoundments closed as a landfill must not exceed the 
following levels (ppm) after the stabilization process is completed 
as according to Condition (3). Constituents must be measured in the 
waste leachate by the method specified in 40 CFR 261.24. Cyanide 
extractions must be conducted using distilled water in the place of 
the leaching media per 40 CFR 261.24.

(A) Inorganic Constituents

    Antimony-0.336; Cadmium-0.280; Hexavalent Chromium-5.0; Lead-
0.84; Cyanide-11.2;

(B) Organic Constituents

    Benzene-0.28; Ethylbenzene-39.2; Toluene-56.; Xylenes-560.; 
trans-1,2-Dichloroethene-5.6; Tetrachloroethylene-0.280; 
Trichloroethylene-0.280
    The approximately 80,000 cubic yards of previously stabilized 
waste in the upper northwest lagoon, entire northeast lagoon, and 
entire south lagoon of the surface impoundments which were closed as 
a landfill requires no verification testing.

    This paragraph provides the levels of constituents for which 
McDonnell Douglas must test the leachate from the wastes in the bottom 
of the northwest lagoon after completion of a stabilization process 
similar to that was used in other portions of the surface impoundments 
which were closed as a single landfill. These are the levels below 
which this waste would be considered non-hazardous and for which the 
Agency is proposing to grant a one time conditional exclusion. The EPA 
selected the set of inorganic and organic constituents specified after 
reviewing information about the composition of the waste, descriptions 
of McDonnell Douglas' historical wastewater treatment process, previous 
test data provided for the waste, and the respective health-based 
levels (HBL) used in delisting decision-making. The EPA established the 
proposed delisting levels for this paragraph by back-calculating the 
Maximum Allowable Leachate (MALs) concentrations from the health-based 
levels for the constituents of concern using the EPACML chemical-
specific DAF of 56 (See, previous discussions in Section D--Agency 
Evaluation) i.e., MAL = HBL x DAF). These delisting levels correspond 
to the allowable levels measured in the TCLP extract of the waste. The 
TCLP for the cyanide constituent would be modified to test the waste by 
substitution of deionized water for the extraction fluid. The 
hexavalent chromium concentration was set a value not to exceed 5.0 mg/
l TCLP concentration in order not to exceed regulatory levels found in 
40 CFR 261.24. The modeled value would be at a concentration of 5.6 mg/
l TCLP concentration. The stabilized wastes in the landfill have been 
demonstrated as meeting the delisting levels and therefore will require 
no further verification testing. A standard one-time exclusion for 
those wastes is proposed.
    (2) Waste Holding and Handling: McDonnell Douglas must store as 
hazardous all stabilized waste from the bottom portion of the 
northwest lagoon area of the closed landfill as generated until 
verification testing as specified in Condition (3), is completed and 
valid analyses demonstrate that condition (1) is satisfied. If the 
levels of constituents measured in the samples of the stabilized 
waste do not exceed the levels set forth in Condition (1), then the 
waste is nonhazardous and may be managed and disposed of in a 
Subtitle D landfill in accordance with all applicable solid waste 
regulations. If constituent levels in a sample exceed any of the 
delisting levels set in Condition (1), the waste generated during 
the time period corresponding to this sample must be restabilized 
until delisting levels are met or managed and disposed of in 
accordance with Subtitle C of RCRA.

    The purpose of this paragraph is to ensure that any unstabilized 
waste located in the bottom of the northwest lagoon area of the closed 
surface impoundments which might contain

[[Page 37805]]

hazardous levels of inorganic and organic constituents are managed and 
disposed of in accordance with Subtitle C of RCRA. Holding the 
unstabilized waste from the northwest area until characterization is 
complete will protect against improper handling of hazardous material. 
If the EPA determines that the data collected under this condition do 
not support the data provided for the petition or McDonnell Douglas is 
not meeting the terms of its exclusion, the exclusion will not cover 
the petitioned wastes.

    (3) Verification Testing Requirements: Sample collection and 
analyses, including quality control procedures, must be performed 
according to SW-846 methodologies. McDonnell Douglas must stabilize 
the previously unstabilized waste from the bottom portion of the 
northwest lagoon of the surface impoundment (which was closed as a 
landfill) using fly ash, kiln dust or similar accepted materials in 
batches of 500 cubic yards or less. McDonnell Douglas must analyze 
one composite sample from each batch of 500 cubic yards or less. A 
minimum of four grab samples must be taken from each waste pile (or 
other designated holding area) of stabilized waste generated from 
each batch run. Each composited batch sample must be analyzed, prior 
to disposal of the waste in the batch represented by that sample, 
for constituents listed in Condition (1). There are no verification 
testing requirements for the stabilized wastes in the upper portions 
of the northwest lagoon, the entire northeast lagoon, and the entire 
south lagoon of the surface impoundments which were closed as a 
landfill.
    (4) Changes in Operating Conditions: If McDonnell Douglas 
significantly changes the stabilization process established under 
Condition (3) (e.g., use of new stabilization agents), McDonnell 
Douglas must notify the Agency in writing. After written approval by 
EPA, McDonnell Douglas may handle the wastes generated as non-
hazardous, if the wastes meet the delisting levels set in Condition 
(1).
    (5) Data Submittals: Records of operating conditions and 
analytical data from Condition (3) must be compiled, summarized, and 
maintained on site for a minimum of five years. These records and 
data must be furnished upon request by EPA, or the State of 
Oklahoma, or both, and be made available for inspection. Failure to 
submit the required data within the specified time period or 
maintain the required records on site for the specified time will be 
considered by EPA, at its discretion, sufficient basis to revoke the 
exclusion to the extent directed by EPA. All data must be 
accompanied by a signed copy of the following certification 
statement to attest to the truth and accuracy of the data submitted:
    Under civil and criminal penalty of law for the making or 
submission of false or fraudulent statements or representations 
(pursuant to the applicable provisions of the Federal Code, which 
include, but may not be limited to, 18 USC Sec. 1001 and 42 USC 
Sec. 6928), I certify that the information contained in or 
accompanying this document is true, accurate and complete.
    As to the (those) identified section(s) of this document for 
which I cannot personally verify its (their) truth and accuracy, I 
certify as the company official having supervisory responsibility 
for the persons who, acting under my direct instructions, made the 
verification that this information is true, accurate and complete.
    In the event that any of this information is determined by EPA 
in its sole discretion to be false, inaccurate or incomplete, and 
upon conveyance of this fact to the company, I recognize and agree 
that this exclusion of waste will be void as if it never had effect 
or to the extent directed by EPA and that the company will be liable 
for any actions taken in contravention of the company's RCRA and 
CERCLA obligations premised upon the company's reliance on the void 
exclusion.

    To provide appropriate documentation that McDonnell Douglas' 
facility is properly stabilizing the waste, all analytical data 
obtained through Condition (3), including quality control information, 
must be compiled, summarized, and maintained on site for a minimum of 
five years. Condition (5) requires that these data be furnished upon 
request and made available for inspection by any employee or 
representative of EPA or the State of Oklahoma.
    If made final, the proposed exclusion will apply to 85,000 cubic 
yards of petitioned waste. The facility would be required to submit a 
new petition if the stabilization process specified for the northwest 
lagoon area of the closed landfill is significantly altered.
    Although management of the wastes covered by this petition would 
not be subject to Subtitle C jurisdiction upon final promulgation of an 
exclusion, McDonnell Douglas must ensure that the waste is delivered to 
an off-site storage, treatment, or disposal facility, either of which 
is permitted, licensed, or registered by a State to manage municipal or 
industrial solid waste.
    (6) Reopener
    (a) If McDonnell Douglas discovers that a condition at the 
facility or an assumption related to the disposal of the excluded 
waste that was modeled or predicted in the petition does not occur 
as modeled or predicted, then McDonnell Douglas must report any 
information relevant to that condition, in writing, to the Regional 
Administrator or his delegate within 10 days of discovering that 
condition.
    (b) Upon receiving any information including that described in 
paragraph (a) regardless of its source, the Regional Administrator 
or his delegate will determine whether the reported condition 
requires further action. Further action may include revoking the 
exclusion, modifying the exclusion, or other appropriate response 
necessary to protect human health and the environment.

    The purpose of paragraph (6) is to require McDonnell Douglas to 
disclose new or different information related to a condition at the 
facility or disposal of the waste if it had or has bearing on the 
delisting. This paragraph will allow EPA to reevaluate the exclusion if 
new or additional information is provided to the Agency from any source 
which indicates that information which EPA's decision was based was 
incorrect or circumstances have changed such that information is no 
longer correct or would cause EPA to deny the petition if then 
presented. Further, although this provision expressly requires 
McDonnell Douglas to report differing site conditions or assumptions 
used in the petition within 10 days of discovery, if EPA discovers such 
information itself or from a third party, it can act on it as 
appropriate. The language being proposed is similar to these provisions 
found in RCRA regulations governing no-migration petitions located at 
Sec. 268.6.
    The EPA believes that it has the authority under RCRA and the 
Administrative Procedures Act, 5 U.S.C. 551 (1978), et seq., to reopen 
a delisting decision if new information is received that calls into 
question the assumptions underlying the delisting and believes that a 
clear statement of its authority in the context of delistings is 
merited in light of Agency experience. (See, e.g., Reynolds Metals 
Company at 62 FR 37694 and 62 FR 63458 where the delisted waste did not 
leach in the actual disposal site as it had been modeled thus leading 
the Agency to repeal the delisting.) In the meantime, in the event that 
an immediate threat to human health and the environment presents 
itself, EPA will continue to address such situations on a case-by-case 
basis and where necessary, will make a good cause finding to justify 
emergency rulemaking. See APA Sec. 553(b).

    (7) Notification Requirements: McDonnell Douglas must provide a 
one-time written notification to any State Regulatory Agency to 
which or through which the delisted waste described above will be 
transported for disposal at least 60 days prior to the commencement 
of such activity. The one-time written notification must be updated 
if the delisted waste is shipped to a different disposal facility. 
Failure to provide such a notification will result in a violation of 
the delisting petition and a possible revocation of the decision.

III. Effective Date

    The EPA intends that this rule should become effective immediately 
upon final publication. The Hazardous and Solid Waste Amendments of 
1984 amended section 3010 of RCRA to allow

[[Page 37806]]

rules to become effective in less than six months when the regulated 
community does not need the six-month period to come into compliance. 
That is the case here, because this rule, if finalized, would reduce 
the existing requirements for persons generating hazardous wastes. In 
light of the unnecessary hardship and expense that would be imposed on 
this petitioner by an effective date six months after publication and 
the fact that a six-month deadline is not necessary to achieve the 
purpose of section 3010, EPA believes that this exclusion should be 
effective immediately upon final publication. These reasons also 
provide a basis for making this rule effective immediately, upon final 
publication, under the Administrative Procedure Act, 5 USC Sec. 553(d).

IV. Regulatory Impact

    Under Executive Order 12866, EPA must conduct an ``assessment'' of 
the potential costs and benefits for all ``significant'' regulatory 
actions. The proposal to grant an exclusion is not significant, since 
its effect, if promulgated, would be to reduce the overall costs and 
economic impact of EPA's hazardous waste management regulations. This 
reduction would be achieved by excluding waste generated at a specific 
facility from EPA's lists of hazardous wastes, thereby enabling this 
facility to manage its waste as nonhazardous. There is no additional 
impact therefore, due to today's proposed rule. Therefore, this 
proposal would not be a significant regulation and no cost/benefit 
assessment is required. The Office of Management and Budget (OMB) has 
also exempted this rule from the requirement for OMB review under 
Section (6) of Executive Order 12866.

V. Children's Health Protection

    Under EO 13045, for all ``significant'' regulatory actions as 
defined by EO 12866, EPA must provide an evaluation of the 
environmental health or safety effect of a proposed rule on children 
and an explanation of why the proposed rule is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by EPA. This proposal is not a significant regulatory action and is 
exempt from EO 13045.

VI. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-612, 
whenever an agency is required to publish a general notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the impact of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
No regulatory flexibility analysis is required, however, if the 
Administrator or delegated representative certifies that the rule will 
not have any impact on any small entities.
    This rule, if promulgated, will not have any adverse economic 
impact on any small entities since its effect would be to reduce the 
overall costs of EPA's hazardous waste regulations and would be limited 
to one facility. Accordingly, I hereby certify that this proposed 
regulation, if promulgated, will not have a significant economic impact 
on a substantial number of small entities. This regulation, therefore, 
does not require a regulatory flexibility analysis.

VII. Paperwork Reduction Act

    Information collection and recordkeeping requirements associated 
with this proposed rule have been approved by the OMB under the 
provisions of the Paperwork Reduction Act of 1980 (Pub. L. 96-511, 44 
U.S.C. 3501 et seq.) and have been assigned OMB Control Number 2050-
0053.

VIII. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(UMRA), Pub. L. 104-4, which was signed into law on March 22, 1995, EPA 
generally must prepare a written statement for rules with Federal 
mandates that may result in estimated costs to State, local, and tribal 
governments in the aggregate, or to the private sector, of $100 million 
or more in any one year. When such a statement is required for EPA 
rules, under section 205 of the UMRA, EPA must identify and consider 
alternatives, including the least costly, most cost-effective or least 
burdensome alternative that achieves the objectives of the rule. The 
EPA must select that alternative, unless the Administrator explains in 
the final rule why it was not selected or it is inconsistent with law. 
Before EPA establishes regulatory requirements that may significantly 
or uniquely affect small governments, including tribal governments, it 
must develop under section 203 of the UMRA a small government agency 
plan. The plan must provide for notifying potentially affected small 
governments, giving them meaningful and timely input in the development 
of EPA regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising them on compliance 
with the regulatory requirements. The UMRA generally defines a Federal 
mandate for regulatory purposes as one that imposes an enforceable duty 
upon state, local or tribal governments or the private sector. The EPA 
finds that today's proposed delisting decision is deregulatory in 
nature and does not impose any enforceable duty upon state, local or 
tribal governments or the private sector. In addition, the proposed 
delisting does not establish any regulatory requirements for small 
governments and so does not require a small government agency plan 
under UMRA section 203.

IX. Intergovernmental Partnership

    Under EO 12875, EPA may not promulgate any regulation which creates 
an unfunded mandate upon State, local or tribal governments. The EPA 
finds that today's proposed delisting decision is deregulatory in 
nature and does not impose any enforceable duty upon state, local or 
tribal governments (See, Section IX. (UMRA) above) and accordingly, 
this action is exempt from the requirements of EO 12875.

List of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous Waste, Recycling, Reporting and 
recordkeeping requirements.

    Dated: June 18, 1998.
William N. Rhea,
Acting Division Director of Multimedia Planning and Permitting.
    For the reasons set out in the preamble, 40 CFR part 261 is 
proposed to be amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    1. The authority citation for part 261 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.

    2. In Tables 1, 2, and 3 of Appendix IX of part 261 it is proposed 
to add the following waste stream in alphabetical order by facility to 
read as follows:

Appendix IX to Part 261--Wastes Excluded Under Parts 260.20 and 
260.22

[[Page 37807]]



                               Table 1.--Wastes Excluded From Non-Specific Sources                              
----------------------------------------------------------------------------------------------------------------
                      Facility                                     Address                  Waste description   
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
McDonnell Douglas Corporation.......................  Tulsa, Oklahoma.................  Stabilized wastewater   
                                                                                         treatment sludges from 
                                                                                         surface impoundments   
                                                                                         previously closed as a 
                                                                                         landfill (at a maximum 
                                                                                         generation of 85,000   
                                                                                         cubic yards on a one-  
                                                                                         time basis). (EPA      
                                                                                         Hazardous Waste No.    
                                                                                         F019, F002, F003, and  
                                                                                         F005) generated at U.S.
                                                                                         Air Force Plant No. 3, 
                                                                                         Tulsa, Oklahoma and is 
                                                                                         disposed of in Subtitle
                                                                                         D landfills after      
                                                                                         [insert publication    
                                                                                         date of final rule].   
                                                                                        McDonnell Douglas must  
                                                                                         implement a testing    
                                                                                         program that meets the 
                                                                                         following conditions   
                                                                                         for the exclusion to be
                                                                                         valid:                 
                                                                                        (1) Delisting Levels:   
                                                                                         All leachable          
                                                                                         concentrations for the 
                                                                                         following constituents 
                                                                                         in the approximately   
                                                                                         5,000 cubic yards of   
                                                                                         unstabilized waste in  
                                                                                         the bottom portion of  
                                                                                         the northwest lagoon of
                                                                                         the surface            
                                                                                         impoundments which are 
                                                                                         closed as a landfill   
                                                                                         must not exceed the    
                                                                                         following levels (ppm) 
                                                                                         after the stabilization
                                                                                         process is completed in
                                                                                         accordance with        
                                                                                         Condition (3).         
                                                                                         Constituents must be   
                                                                                         measured in the waste  
                                                                                         leachate by the method 
                                                                                         specified in 40 CFR    
                                                                                         261.24. Cyanide        
                                                                                         extractions must be    
                                                                                         conducted using        
                                                                                         distilled water in the 
                                                                                         place of the leaching  
                                                                                         media per 40 CFR       
                                                                                         261.24.                
                                                                                        (A) Inorganic           
                                                                                         Constituents           
                                                                                        Antimony-0.336; Cadmium-
                                                                                         0.280; Hexavalent      
                                                                                         Chromium-5.0; Lead-    
                                                                                         0.84; Cyanide-11.2;    
                                                                                        (B) Organic Constituents
                                                                                        Benzene-0.28;           
                                                                                         Ethylbenzene-39.2;     
                                                                                         Toluene-56.; Xylenes-  
                                                                                         560.; trans-1,2-       
                                                                                         Dichloroethene-5.6;    
                                                                                         Tetrachloroethylene-   
                                                                                         0.280;                 
                                                                                         Trichloroethylene-0.280
                                                                                        The approximately 80,000
                                                                                         cubic yards of         
                                                                                         previously stabilized  
                                                                                         waste in the upper     
                                                                                         northwest lagoon,      
                                                                                         entire northeast       
                                                                                         lagoon, and entire     
                                                                                         south lagoon of the    
                                                                                         surface impoundments   
                                                                                         which were closed as a 
                                                                                         landfill requires no   
                                                                                         verification testing.  
                                                                                        (2) Waste Holding and   
                                                                                         Handling: McDonnell    
                                                                                         Douglas must store as  
                                                                                         hazardous all          
                                                                                         stabilized waste from  
                                                                                         the bottom portion of  
                                                                                         the northwest lagoon   
                                                                                         area of the closed     
                                                                                         landfill as generated  
                                                                                         until verification     
                                                                                         testing as specified in
                                                                                         Condition (3), is      
                                                                                         completed and valid    
                                                                                         analyses demonstrate   
                                                                                         that condition (1) is  
                                                                                         satisfied. If the      
                                                                                         levels of constituents 
                                                                                         measured in the samples
                                                                                         of the stabilized waste
                                                                                         do not exceed the      
                                                                                         levels set forth in    
                                                                                         Condition (1), then the
                                                                                         waste is nonhazardous  
                                                                                         and may be managed and 
                                                                                         disposed of in a       
                                                                                         Subtitle D landfill in 
                                                                                         accordance with all    
                                                                                         applicable solid waste 
                                                                                         regulations. If        
                                                                                         constituent levels in a
                                                                                         sample exceed any of   
                                                                                         the delisting levels   
                                                                                         set in Condition (1),  
                                                                                         the waste generated    
                                                                                         during the time period 
                                                                                         corresponding to this  
                                                                                         sample must be         
                                                                                         restabilized until     
                                                                                         delisting levels are   
                                                                                         met or managed and     
                                                                                         disposed of in         
                                                                                         accordance with        
                                                                                         Subtitle C of RCRA.    
                                                                                        (3) Verification Testing
                                                                                         Requirements: Sample   
                                                                                         collection and         
                                                                                         analyses, including    
                                                                                         quality control        
                                                                                         procedures, must be    
                                                                                         performed according to 
                                                                                         SW-846 methodologies.  
                                                                                         McDonnell Douglas must 
                                                                                         stabilize the          
                                                                                         previously unstabilized
                                                                                         waste from the bottom  
                                                                                         portion of the         
                                                                                         northwest lagoon of the
                                                                                         surface impoundment    
                                                                                         (which was closed as a 
                                                                                         landfill) using fly    
                                                                                         ash, kiln dust or      
                                                                                         similar accepted       
                                                                                         materials in batches of
                                                                                         500 cubic yards or     
                                                                                         less. McDonnell Douglas
                                                                                         must analyze one       
                                                                                         composite sample from  
                                                                                         each batch of 500 cubic
                                                                                         yards or less. A       
                                                                                         minimum of four grab   
                                                                                         samples must be taken  
                                                                                         from each waste pile   
                                                                                         (or other designated   
                                                                                         holding area) of       
                                                                                         stabilized waste       
                                                                                         generated from each    
                                                                                         batch run. Each        
                                                                                         composited batch sample
                                                                                         must be analyzed, prior
                                                                                         to disposal of the     
                                                                                         waste in the batch     
                                                                                         represented by that    
                                                                                         sample, for            
                                                                                         constituents listed in 
                                                                                         Condition (1). There   
                                                                                         are no verification    
                                                                                         testing requirements   
                                                                                         for the stabilized     
                                                                                         wastes in the upper    
                                                                                         portions of the        
                                                                                         northwest lagoon, the  
                                                                                         entire northeast       
                                                                                         lagoon, and the entire 
                                                                                         south lagoon of the    
                                                                                         surface impoundments   
                                                                                         which were closed as a 
                                                                                         landfill.              
                                                                                        (4) Changes in Operating
                                                                                         Conditions: If         
                                                                                         McDonnell Douglas      
                                                                                         significantly changes  
                                                                                         the stabilization      
                                                                                         process established    
                                                                                         under Condition (3)    
                                                                                         (e.g., use of new      
                                                                                         stabilization agents), 
                                                                                         McDonnell Douglas must 
                                                                                         notify the Agency in   
                                                                                         writing. After written 
                                                                                         approval by EPA,       
                                                                                         McDonnell Douglas may  
                                                                                         handle the wastes      
                                                                                         generated as non-      
                                                                                         hazardous, if the      
                                                                                         wastes meet the        
                                                                                         delisting levels set in
                                                                                         Condition (1).         
                                                                                        (5) Data Submittals:    
                                                                                         Records of operating   
                                                                                         conditions and         
                                                                                         analytical data from   
                                                                                         Condition (3) must be  
                                                                                         compiled, summarized,  
                                                                                         and maintained on site 
                                                                                         for a minimum of five  
                                                                                         years. These records   
                                                                                         and data must be       
                                                                                         furnished upon request 
                                                                                         by EPA, or the State of
                                                                                         Oklahoma, or both, and 
                                                                                         made available for     
                                                                                         inspection. Failure to 
                                                                                         submit the required    
                                                                                         data within the        
                                                                                         specified time period  
                                                                                         or maintain the        
                                                                                         required records on    
                                                                                         site for the specified 
                                                                                         time will be considered
                                                                                         by EPA, at its         
                                                                                         discretion, sufficient 
                                                                                         basis to revoke the    
                                                                                         exclusion to the extent
                                                                                         directed by EPA. All   
                                                                                         data must be           
                                                                                         accompanied by a signed
                                                                                         copy of the following  
                                                                                         certification statement
                                                                                         to attest to the truth 
                                                                                         and accuracy of the    
                                                                                         data submitted:        

[[Page 37808]]

                                                                                                                
                                                                                        Under civil and criminal
                                                                                         penalty of law for the 
                                                                                         making or submission of
                                                                                         false or fraudulent    
                                                                                         statements or          
                                                                                         representations        
                                                                                         (pursuant to the       
                                                                                         applicable provisions  
                                                                                         of the Federal Code,   
                                                                                         which include, but may 
                                                                                         not be limited to, 18  
                                                                                         USC Sec.  1001 and 42  
                                                                                         USC Sec.  6928), I     
                                                                                         certify that the       
                                                                                         information contained  
                                                                                         in or accompanying this
                                                                                         document is true,      
                                                                                         accurate and complete. 
                                                                                        As to the (those)       
                                                                                         identified section(s)  
                                                                                         of this document for   
                                                                                         which I cannot         
                                                                                         personally verify its  
                                                                                         (their) truth and      
                                                                                         accuracy, I certify as 
                                                                                         the company official   
                                                                                         having supervisory     
                                                                                         responsibility for the 
                                                                                         persons who, acting    
                                                                                         under my direct        
                                                                                         instructions, made the 
                                                                                         verification that this 
                                                                                         information is true,   
                                                                                         accurate and complete. 
                                                                                        In the event that any of
                                                                                         this information is    
                                                                                         determined by EPA in   
                                                                                         its sole discretion to 
                                                                                         be false, inaccurate or
                                                                                         incomplete, and upon   
                                                                                         conveyance of this fact
                                                                                         to the company, I      
                                                                                         recognize and agree    
                                                                                         that this exclusion of 
                                                                                         waste will be void as  
                                                                                         if it never had effect 
                                                                                         or to the extent       
                                                                                         directed by EPA and    
                                                                                         that the company will  
                                                                                         be liable for any      
                                                                                         actions taken in       
                                                                                         contravention of the   
                                                                                         company's RCRA and     
                                                                                         CERCLA obligations     
                                                                                         premised upon the      
                                                                                         company's reliance on  
                                                                                         the void exclusion.    
                                                                                        (6) Reopener Language   
                                                                                        (a) If McDonnell Douglas
                                                                                         discovers that a       
                                                                                         condition at the       
                                                                                         facility or an         
                                                                                         assumption related to  
                                                                                         the disposal of the    
                                                                                         excluded waste that was
                                                                                         modeled or predicted in
                                                                                         the petition does not  
                                                                                         occur as modeled or    
                                                                                         predicted, then        
                                                                                         McDonnell Douglas must 
                                                                                         report any information 
                                                                                         relevant to that       
                                                                                         condition, in writing, 
                                                                                         to the Regional        
                                                                                         Administrator or his   
                                                                                         delegate within 10 days
                                                                                         of discovering that    
                                                                                         condition.             
                                                                                        (b) Upon receiving      
                                                                                         information described  
                                                                                         in paragraph (a) from  
                                                                                         any source, the        
                                                                                         Regional Administrator 
                                                                                         or his delegate will   
                                                                                         determine whether the  
                                                                                         reported condition     
                                                                                         requires further       
                                                                                         action. Further action 
                                                                                         may include revoking   
                                                                                         the exclusion,         
                                                                                         modifying the          
                                                                                         exclusion, or other    
                                                                                         appropriate response   
                                                                                         necessary to protect   
                                                                                         human health and the   
                                                                                         environment.           
                                                                                        (7) Notification        
                                                                                         Requirements: McDonnell
                                                                                         Douglas must provide a 
                                                                                         one-time written       
                                                                                         notification to any    
                                                                                         State Regulatory Agency
                                                                                         to which or through    
                                                                                         which the delisted     
                                                                                         waste described above  
                                                                                         will be transported for
                                                                                         disposal at least 60   
                                                                                         days prior to the      
                                                                                         commencement of such   
                                                                                         activity. The one-time 
                                                                                         written notification   
                                                                                         must be updated if the 
                                                                                         delisted waste is      
                                                                                         shipped to a different 
                                                                                         disposal facility.     
                                                                                         Failure to provide such
                                                                                         a notification will    
                                                                                         result in a violation  
                                                                                         of the delisting       
                                                                                         petition and a possible
                                                                                         revocation of the      
                                                                                         decision.              
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
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[FR Doc. 98-18732 Filed 7-13-98; 8:45 am]
BILLING CODE 6560-50-P